Citation Nr: 9817913
Decision Date: 06/10/98 Archive Date: 06/22/98
DOCKET NO. 94-10 759 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for left shoulder
disability, to include arthritis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
William W. Berg, Counsel
INTRODUCTION
The veteran served on active duty from January 1962 to June
1970 and from August 1972 to August 1975. He served in
Vietnam, and his decorations include the Combat Medical
Badge.
When this matter was previously before the Board of Veterans'
Appeals in March 1996, the issue was styled as entitlement to
service connection for residuals of a bilateral shoulder
injury. The matter was remanded to the Department of
Veterans Affairs (VA) Regional Office (RO) in Detroit,
Michigan, for additional development. Following the
requested development, the RO in January 1998 granted service
connection for residuals of a right acromioclavicular joint
separation but continued its denial of service connection for
arthritis of the left shoulder. The issue of entitlement to
service connection for a left shoulder disorder is now before
the Board for final appellate consideration.
In an informal presentation dated in May 1998, the veteran’s
accredited reporesentative apparently raised the issue of
service connection for a left shoulder disability as
secondary to the service-connected right shoulder disability.
As this issue has not been developed for appellate review, it
is referred to the RO for appropriate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
It is essentially contended by and on behalf of the veteran
that he has arthritis of the left shoulder that was acquired
as a result of his active military service. It is maintained
that he sustained separations of both shoulders while on
active duty and that he now has arthritis and severe pain in
the left shoulder as a consequence.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for service connection for left
shoulder disability.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. A left shoulder disorder was not present in service or
until a number of years following service, and any current
arthritis of the left shoulder is not shown to be related to
service or any incident of service origin.
CONCLUSION OF LAW
Left shoulder disability was not incurred in or aggravated by
service, nor may arthritis of the left shoulder be presumed
to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110,
1112, 1113, 1131, 1137, 5107 (West 1991 & Supp. 1998);
38 C.F.R. §§ 3.303, 3.307, 3.309 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Although the RO found this claim to be not well grounded when
it reconsidered it in January 1998, the record indicates that
the RO denied service connection for left shoulder disability
on the merits - as not shown by the evidence of record - in
the rating determination of June 1993. In view of this, and
in view of the fact that this case was previously remanded
for further development of the issue now in appellate status,
the Board finds that the veteran's claim for service
connection for left shoulder disability is plausible and thus
well grounded within the meaning of 38 U.S.C.A. § 5107(a).
See Grivois v. Brown, 6 Vet. App. 136, 140 (1994) (Board
remand for further development of the issue before it implies
that the Board has found the claim to be well grounded). The
Board is satisfied that all relevant evidence has been
obtained with respect to this claim and that no further
assistance to the veteran is required in order to comply with
the duty to assist mandated by statute.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131. Where a veteran served
continuously for ninety (90) days or more during a period of
war or during peacetime service after December 31, 1946, and
arthritis becomes manifest to a degree of 10 percent within a
year from the date of termination of service, such arthritis
shall be presumed to have been incurred in service even
though there is no evidence of the disease during the period
of service; however, this presumption is rebuttable by
affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
The veteran's service medical records are essentially
negative for complaints or findings of left shoulder
disability. The earliest indication of any left shoulder
disability is shown nearly two decades following his final
separation from service, when, in August 1993, mild
osteoarthritis of the left acromioclavicular joint was
diagnosed on VA examination. It was reported at that time
that the veteran said that his left shoulder had never given
him any problems. It was also reported that he was a
warehouse man at a VA medical center. Private medical
reports dated in December 1992 show that the veteran worked
at a warehouse in shipping and loading and unloading trucks
and that he handled 30 to 50 packages a day weighing as
little as a half pound to as much as 30 pounds. The veteran
stated in December 1992 that he had had no problems lifting
and that his greatest problem had been after rest, such as
the first thing in the morning or after work. On VA
examination in August 1993, the examiner reported that X-rays
of both shoulders with weight bearing revealed hypertrophic
changes in the acromioclavicular joint, more marked on the
right. Subsequent orthopedic examination by VA in March
1997, following a review of the claims file by the examiner,
resulted in a finding that the shoulder on the left was
normal. It was then reported that while playing softball
during service, the veteran had a dislocation of his
acromioclavicular joint on the right. The examiner said that
the record showed a number of injuries to the right upper
extremity. However, the examiner stated that there were no
complaints at all regarding the left upper extremity,
including the shoulder, and that a physical examination
showed that the left shoulder was normal.
While arthritis of the left shoulder has been diagnosed by
VA, the record is devoid of any showing of left shoulder
disability, including arthritis, during either period of
active duty or until many years following the veteran's final
separation from service. Moreover, the record is completely
devoid of any competent medical evidence relating any current
left shoulder disability, including arthritis, to service or
to any incident of service origin. Although the veteran was
trained as a corpsman in service, he lacks the necessary
medical expertise either to render a diagnosis or to offer a
medical opinion attributing a disability to service or to an
incident of service origin, as this requires specific medical
expertise. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995)
(Medical professional not competent to opine as to matters
outside the scope of his or her expertise, even for purpose
of rendering claim well grounded). It is highly pertinent in
this case that despite an extensive review of the relevant
medical evidence, the VA examiner in March 1997 did not
attribute any current left shoulder disability to the
veteran’s service or any incident therein. The evidence of
record mostly addresses the veteran's right shoulder problem.
Under the law, the veteran is competent to describe the
symptoms that he has observed or experienced, but he is not
competent to render a diagnosis of to offer a medical opinion
attributing a disability such as arthritis of the left
shoulder to service, as this requires medical expertise. See
LeShore, 8 Vet. App. at 409; Heuer v. Brown, 7 Vet. App. 379,
384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The
record is utterly devoid of any such competent medical
evidence. Moreover, the veteran does not claim, nor does the
evidence show that he acquired any current left shoulder
disability as a result of his combat service. 38 C.F.R.
§ 3.304(d) (1997). The Board therefore concludes that the
preponderance of the evidence is against the claim for
service connection for left shoulder disability, including
arthritis of the left shoulder.
ORDER
Service connection for left shoulder disability, to include
arthritis, is denied.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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